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EXHIBIT 10.3
CHERRY CREEK PLAZA
OFFICE BUILDING LEASE
THIS LEASE, made effective this 18th day of May, 1999 between PLAZA II
LTD., a limited partnership of Denver, Colorado, LANDLORD, and HIGH SPEED ACCESS
CORP., TENANT.
PREMISES
1. DESCRIPTION. Landlord does hereby lease to Tenant and Tenant hereby
rents form Landlord those certain interior premises designated on the Plan
attached hereto as Exhibit A (hereinafter "Premises") and by this reference made
a part hereof, said Premises being situated on the ninth (9th) floor(s) known as
Suite 900, consisting of approximately 13,056 rentable square feet, together
with two lines on the tenant directory, in that certain building known as Cherry
Creek Plaza II (hereinafter "Building"), located at 650 South Cherry Street,
Denver (Arapaho County), Colorado, together with a non-exclusive right, subject
to the provisions hereof to use plazas, common areas, Amenities (as defined
herein) or other areas on the real property legally described on Exhibit B
designated by Landlord for the exclusive or non-exclusive use of tenants of the
Building Complex (the "Common Areas"). The Building is part of that certain
development which is commonly referred to as Cherry Creek Plaza which includes
buildings with the street addresses of 600 South Cherry Street and 650 South
Cherry Street, Denver, Colorado, and a parking structure, all plazas, Common
Areas, other areas and appurtenances thereto (the "Building Complex"). Said
letting and renting is upon and subject to the terms, covenants and conditions
set forth herein and Tenant covenants as a material part of the consideration
for this Lease to keep and perform each and all of said terms, covenants and
conditions by it to be kept and performed and that this Lease is made upon the
condition of such performance.
A. CONDITION OF PREMISES. Tenant accepts the Premises in its condition
and configuration at the time of the commencement of this Lease. Landlord shall
have no obligation to alter nor remodel the Premises unless otherwise
specifically agreed in writing. (See attached Addendum, which shall become an
integral part of this Lease.)
TERM
2. PRIMARY. The primary term of this Lease shall be for fourteen (14)
months, and subject to Paragraph 2.B., shall commence on June 1, 1999 and end on
July 31, 2000 unless sooner terminated pursuant to this Lease.
A. DELAY IN COMMENCEMENT. Tenant agrees that in the event of the
inability of Landlord for any reason to deliver possession of the Premises to
Tenant on the commencement date set forth above, Landlord shall not be liable
for any damages thereby, nor shall such inability affect the validity of this
Lease or the obligations of Tenant hereunder, but in such case Tenant shall not
be obligated to pay rent or other monetary sums until possession of the Premises
is tendered to
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Tenant; and such postponement shall be in full settlement of all claims which
Tenant may otherwise have by reason of such delay. If the commencement of the
term is delayed and such commencement date would occur on other than the 1st day
of the month the term as to commence, the commencement date of the primary term
shall be further delayed until the 1st day of the following month and the
expiration of the term shall be extended so that the primary term will continue
for the full period set forth in subparagraph A above. As soon as practicable
after the primary term commences, Landlord and Tenant shall execute an addendum
to this Lease setting forth the exact date on which the primary term commenced
and the expiration date of the primary term.
RENT
3. BASIC MONTHLY RENT. Tenant shall pay to Landlord as Base Rent for the
Premises in advance on the first day of each calendar month of the term of this
Lease without deduction, offset, prior notice or demand, in lawful money of the
United States, the sum of Twenty Thousand Six Hundred Seventy-two Dollars and No
100ths Dollars ($20,672.00). All rent shall be paid at the office of Landlord or
to such other person or to such other place as Landlord may designate in
writing. If payment of rent or other monetary sums due Landlord hereunder is
made later than the tenth (10th) day of the month when due, in addition to the
amounts described in Paragraph 16.F, a one-time administrative late charge of
five percent (5%) of the amount due, or $50.00, whichever is greater, shall be
due and payable by Tenant upon demand. If the commencement date is not the first
day of a month, or if the Lease termination date is not the last day of a month,
a prorated monthly installment shall be paid based upon a rate of 1/30th of the
then current monthly rental per day for the fractional part of the month during
which the Lease commences and/or terminates.
A. RENT DEPOSIT. Concurrently with Tenant's execution of this Lease,
Tenant shall pay to Landlord the sum of Twenty Two Thousand Six Hundred
Ninety-seven and no 100ths Dollars ($22,697.00) as Base Rent for the month(s) of
June, 1999 including parking rental.
B. ADDITIONAL RENT. In addition to Base Rent, Tenant shall pay to
Landlord Tenant's Proportionate Share (as hereinafter defined) of Operating
Costs (as hereinafter defined) and such other charges as are required by the
terms of this Lease to be paid by Tenant which may be referred to herein as
"Additional Rent." Landlord shall have the same rights as to the Additional Rent
as it has to the payment of Base Rent. All amounts of Base Rent and Additional
Rent under the Lease may be referred to herein as "Rent."
PARKING
4. Tenant and its employees shall have the right to use on an unreserved,
first come, first served basis a total of fifty-four (54) parking spaces of
which twenty-seven (27) are covered spaces and the remainder of which are not
covered, provided in the Building Complex on the terms and conditions contained
herein and in a parking agreement each user of such spaces agrees to execute. If
Tenant shall fail to obtain an agreement from each user of the parking spaces
and deliver it to
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Landlord, Tenant shall assume all obligations set forth in this paragraph and in
such agreement for Landlord's rules and regulations for parking for such user.
Tenant agrees to pay Two Thousand Twenty Five an no 100ths Dollars ($2,205.00)
in advance base monthly rental for said spaces, payable concurrently with the
Base Rent provided above. Landlord shall be entitled to increase or decrease the
charge per parking space from time to time upon not less than one month's
written notice to Tenant of such increase or decrease. If Tenant fails to pay
the parking charges in a timely manner, Landlord, at its election, may cancel
Tenant's right to use the number of spaces for which Tenant has failed to pay
and shall notify Tenant of such cancellation. In addition to other remedies for
Landlord for an Event of Default under the Lease, Tenant shall forfeit its right
to all parking spaces granted hereunder. Landlord will also provide visitor
parking to be used on a first come, first served basis by visitors to the
Building Complex. Tenant, its employees and visitors, agree to obey and abide by
all rules and regulations established, modified and amended from time to time by
Landlord for the safety, protection, cleanliness and preservation of order in
connection with such parking, ingress and egress and other automobile and
pedestrian use of said property. Landlord reserves the right to specifically
assign and reassign from time to time the location of any or all of said parking
spaces among the tenants of the Building Complex in any manner in which Landlord
deems reasonable in Landlord's sole judgment. Landlord, its agent and employees
shall not be responsible to Tenant, its employees or visitors, for any damage,
fire, theft or loss to vehicles or other properties or injuries to persons
occurring in the parking structure parking areas or arising out of the use of
the parking spaces whether caused by theft, collision, moving vehicle, explosion
or any other activity or occurrence or for the non-performance by any other
tenant, visitor or user of said parking facilities of said rules and regulations
or assignment of spaces.
SECURITY DEPOSIT
5. Tenant has deposited with Landlord the sum of Twenty-two Thousand Six
Ninety-seven and No Hundredths Dollars ($22,697.00) as security for the full and
faithful performance of every provision of this Lease to be performed by Tenant.
If Tenant defaults with respect to any provision of this Lease, including but
not limited to the provisions relating to the payment of rent or any other sum
in default, or for the payment of any other amount which Landlord may spend or
become obligated to spend by reason of Tenant's default or to compensate
Landlord for any other loss or damage which Landlord may suffer by reason of
Tenant's default. If any portion of said deposit is so used or applied, Tenant
shall within five (5) days after written demand therefor deposit cash with
Landlord in an amount sufficient to restore the security deposit to its original
amount and Tenant's failure to do so shall be a material breach of this Lease.
Said deposit shall not be considered as liquidated damages and if claims of
Landlord exceed said deposit, Tenant shall remain liable for the balance of such
claims. Landlord shall not be required to keep this security deposit separate
from its general funds and Tenant shall not be entitled to interest on such
deposit. If said deposit has not bee utilized as aforesaid, said deposit, or as
much thereof as has not been utilized for such purposes, shall be refunded to
Tenant or to whomever is the then holder of Tenant's interest in the Lease,
without interest, within sixty (60) days after the termination of the Lease or
surrender and acceptance of the Premises, whichever occurs last. In the event of
termination of Landlord's interest in this Lease, Landlord shall transfer said
deposit to Landlord's successor interest whereupon
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Tenant agrees to release Landlord from liability for the return of such depo0sit
or the accounting therefor.
OPERATING COSTS INCREASES
6. PAYMENT. In addition to the monthly Base Rent provided above, during the
term of this Lease and any extensions or renewals hereof, Tenant shall pay to
Landlord as Additional Rent, Tenant's Proportionate Share (as hereinafter
defined) of increases in Operating Costs (as hereinafter defined) in accordance
with the provisions of this Paragraph 6.
A. DEFINITIONS. In addition to the terms herein above defined, the
following terms shall have the following meanings with respect to this Paragraph
of the Lease:
[1] "BASE OPERATING COSTS" shall mean the actual Operating Costs for
the Building for calendar year 1999, excluding the annual reserve described
in subparagraph B(5)(1) below. Tenant acknowledges that Landlord has not
made any representation or given Tenant any assurance that the Operating
Costs will equal or approximate the actual Operating Costs for any calendar
year during the primary term of this Lease or any extension thereof, except
for the calendar year set forth above.
[2] "TENANT'S PROPORTIONATE SHARE" shall mean 8.2420 percent
(8.2420%), which is Tenant's proportionate share of the total Rentable Area
of the Building.
[3] "LANDLORD'S ACCOUNTANTS" shall mean that individual or firm
employed by Landlord from time to time to keep the books and records for
the Building and/or to prepare the federal and state income tax returns for
Landlord with respect to the Building.
[4] "RENTABLE AREA" shall mean the total rentable area of the
Building computed on a full floor rentable area basis, which is 158,408
square feet as of the date hereof.
[5] "OPERATING COSTS" shall mean all operating costs and expenses of
the Building Complex of any kind or nature which are necessary, ordinary or
customarily incurred in connection with the operation and maintenance of
buildings in the metropolitan Denver, Colorado area. Landlord shall
allocate Operating Costs attributable to operation and maintenance of the
Building Complex between and among all of the buildings located in the
Building Complex on an equitable basis which may change from time to time.
Operating Costs shall include but not be limited to:
[a] All real and personal property taxes and assessments levied
against the Building Complex by any governmental or quasi-governmental
authority. The foregoing shall include any taxes or assessments of a
nature not presently in
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effect which shall hereafter be levied on the Building Complex as a
result of the use, ownership or operation of the Building Complex, or
for any other reason, whether in lieu of, or in addition to, any
current real estate taxes and assessments; provided, however, any
taxes which shall be levied on the rentals of the Building shall be
determined as if the Building were Landlord's only property and,
provided further, that in no event shall the term "taxes or
assessments," as used herein, including any net federal or state
income taxes levied or assessed on Landlord, unless such taxes are a
specific substitute for real property taxes. Such term shall, however,
including gross taxes on rentals. All of the foregoing are
collectively referred to herein as the "Taxes." "Assessment" shall
include so-called special assessments, any license tax, levy, charge,
penalty or tax, imposed by any authority having the direct power to
tax, including any city, county, state or federal government or any
school or other improvement or special district thereof, against the
Building or the Building Complex. Expenses incurred by Landlord for
tax consultants in contesting the amount or validity of any such taxes
or assessments shall be included in such computations. Notwithstanding
anything to the contrary contained herein, Tenant shall pay before
delinquency any and all taxes, assessments, license taxes, and other
charges levied, assessed or imposed and which become payable upon
Tenant's operations at, occupancy of, or conduct of business at the
Premises or upon equipment, furniture, appliances, trade fixtures and
other personal property of any kind installed or located at the
Premises.
[b] Costs of supplies, including, but not limited to, the cost
of relamping all standard building tenant lighting as the same may be
required from time to time.
[c] Cost incurred in connection with obtaining and providing
energy to the Building Complex, including, but not limited to, costs
of natural gas, electricity and fuel oils, or any other energy
sources.
[d] Costs of water and sanitary and storm drainage services.
[e] Costs of janitorial and security services, including the
cost of managing and operating a computer which controls building
energy consumption, life safety equipment, fire alarms, and security
access/response, when applicable.
[f] Costs of general maintenance and repairs, including costs
under HVAC and other mechanical maintenance contracts, and repairs and
replacements of equipment used in connection with such maintenance and
repair work.
[g] Costs of maintenance and replacement of landscaping.
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[h] Insurance premiums, including fire and all-risk coverage
(including flood and earthquake coverage), together with loss of rent
endorsement, the part of any claim required to be paid under the
deductible portion of any insurance policy carried by Landlord in
connection with the building Complex or Common Areas or any component
parts thereof, public liability insurance (under primary and umbrella
policies); and any other insurance carried by Landlord on the Building
Complex or Common Area or any component parts thereof (all such
insurance shall be in such amounts and with such deductibles as
Landlord may reasonably determine).
[i] Labor costs, including wages and other payments, costs to
Landlord of workmen's compensation and disability insurance, payroll
taxes, welfare fringe benefits, and all legal fees and other costs or
expenses incurred in resolving any labor dispute.
[j] Professional building management fees (provided that such
fees shall not be in excess of comparable costs for comparable
services in comparable office buildings in the metropolitan Denver,
Colorado area).
[k] Legal, accounting, inspection and other consultation fees
incurred in the ordinary course of operating the Building and in
making the computations required hereunder.
[l] The costs of capital improvements and structural repairs and
replacements made in or to the Building Complex and/or Common Areas in
order to conform to changes subsequent to the date of this Lease in
any applicable laws, ordinances, rules, regulations or orders of any
governmental or quasi-governmental authority having jurisdiction over
the Building and/or Common Areas (herein "Required Capital
Improvements"); the costs of any capital improvements and structural
repairs and replacements designed primarily to reduce Operating Costs
(herein "Cost Savings Improvements"); and a reasonable annual reserve
(not to exceed fifteen cents annually per rentable square foot) for
all other capital improvements and structural repairs and replacements
reasonably necessary to permit Landlord to maintain the Building
Complex. The expenditures for Required Capital Improvements and Cost
Savings Improvements shall be amortized at a market rate return over
the useful life of such capital improvements or structural repair or
replacement (as determined by Landlord's accountants); provided that
the amortized amount of any Cost Savings Improvements shall be limited
in any year to the reduction in Operating Costs as a result thereof.
"Operating Costs" shall not include: (i) costs of work, including painting
and decorating and tenant change work, which Landlord performs for any tenant or
in any tenant's space in the Building Complex other than work of a kind and
scope which Landlord
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would be obligated to furnish to all tenants whose leases contain rental
adjustment and services provision similar to this Lease; (ii) costs of repairs
or other work occasions by fire, windstorm or other insured casualty to the
extent of insurance proceeds received; (iii) leasing commissions, advertising
expenses and other costs incurred in leasing space in the Building; (iv) costs
of repairs or rebuilding necessitated by condemnation; (v) any interest on
borrowed money or debt amortization, except as specifically set forth above; or
(vi) depreciation on the Building Complex.
B. PAYMENTS. Tenant hereby agrees for each calendar year of the term
hereof to pay to Landlord as hereafter provided, Tenant's Proportionate Share of
the amount of the increase in the Operating Costs for the calendar year
completed over the Base Operating Costs. Tenant also agrees to pay to Landlord
monthly at the same time as the Base Rent is paid during each calendar year
following the year in which the primary term commences, an amount equal to 1/12
of Landlord's estimate of Tenant's Proportionate Share of any projected
increases in Operating Costs in excess of the Base Operating Costs, with a final
adjustment to be made between parties at a later date for said calendar year in
accordance with the procedure set forth herein.
[1] As soon as practicable following the end of each calendar year
during the primary term, beginning with the end of the calendar year in
which the primary term commences, Landlord shall submit to Tenant a
statement setting forth: (i) the exact amount of the increase, if any, in
Tenant's Proportionate Share of the increases in Operating Costs for the
calendar year just completed over the Base Operating Costs; and (ii) for
each calendar year following the year during which the primary term
commences, the difference, if any, between Tenant's actual Proportionate
Share of the Operating Costs for the calendar year just completed and the
estimated amount of Tenant's Proportionate Share of the increases in
Operating Costs which was paid for such year. Such statement shall also set
forth the amount of the estimated increases, if any, in Operating Costs
over Base Operating Costs for the new calendar year computed in accordance
with the foregoing provisions and the corresponding increase or decrease in
Tenant's monthly rent for such new calendar year above ro below the
Additional Rent paid by Tenant for the immediately preceding calendar year;
provided, however, in no event will the rental to be paid by Tenant
hereunder be less than the Base Rent for such calendar year.
[2] To the extent that Tenant's Proportionate Share of the actual
increase in Operating Costs for the period covered by such statement are
higher than Tenant's Proportionate Share of the estimated increases which
Tenant previously paid during the calendar year just completed, if any,
Tenant shall pay to Landlord the difference within thirty (30) days
following receipt of said statement from Landlord. If, however, Tenant's
Proportionate Share of the actual increases in Operating Costs for the
period covered by the statement are less than Tenant's Proportionate Share
of the estimated increases which Tenant previously paid during the calendar
year just completed, if any, Landlord shall credit the difference against
the Tenant's estimated payment for such Operating Costs for the current
year. Until Tenant receives such statement, Tenant shall continue to pay
the amount required
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for the prior year, but Tenant shall commence payment to Landlord of the
monthly installments of such estimates on the basis of the statement
beginning on the first day of the month following the month in which Tenant
receives such statement. Moreover, Tenant shall pay to Landlord or deduct
from the rent, as the case may be, the difference, if any, between the
monthly installments of rent, so adjusted, for the new year and the monthly
installments of rent actually paid during the new calendar year.
C. SURVIVAL. Tenant's obligation with respect to payment of its
Proportionate Share of the increase in Operating Costs shall survive the
expiration or early termination of this Lease and Landlord shall have the right
to retain the Security Deposit, or so much thereof as it deems necessary, to
secure such payment attributable to the year in which the Lease terminates. If
the Lease is in effect for less than a full calendar year during the first or
last calendar years of the primary term, Tenant's Proportionate Share for such
partial year shall be calculated by proportionately reducing the Base Operating
Costs to reflect the number of months in such year during which the Lease was in
effect (the "Adjusted Base Operating Costs"). The Adjusted Base Operating Costs
shall then be compared with the actual Operating Costs for said partial year to
determine the amount, if any, of any increases in the actual Operating Costs for
such partial year over the Adjusted Base Operating Costs.
D. TENANT REVIEW. Tenant shall have the right, at any time within
thirty (30) days after a statement of actual Operating Costs for a particular
calendar year has been rendered by Landlord as provided herein, upon written
notice to Landlord, at Tenant's sole cost and expense, to examine Landlord's
books and records during ordinary business hours relating to the determination
of such Operating Costs at the location where such books and records are
maintained. Unless Tenant objects to the rental adjustment herein within said
thirty (30) day period, such statement and adjustment shall be deemed
conclusive. Notwithstanding notice by Tenant pursuant to this paragraph, Tenant
shall continue to pay Landlord the amount of the adjusted monthly installment of
Additional Rent determined by Landlord as provided in this paragraph.
E. SPACE COMPUTATION. Notwithstanding anything contained herein to the
contrary, if any lease entered into by Landlord with any tenant in the Building
is on a so-called "net" basis, or provides for a separate basis of computation
for any Operating Costs with respect to its leased premises, then, to the extent
that Landlord determines that an adjustment should be made in making the
computations herein provided for, Landlord shall be permitted to modify the
computation of Base Operating Costs, Rentable Area, and Operating Costs for a
particular calendar year in order to eliminate or otherwise modify any such
expenses which are paid for in whole or in part by such tenant. Furthermore, in
making any computations contemplated hereby, Landlord shall also be permitted to
make such adjustments and modifications to the provisions of this paragraph 6 as
shall be reasonably necessary to achieve the intention of the parties hereto. In
the event the Rentable Area is not fully occupied during any particular calendar
year, Landlord may adjust those Operating Costs which are affected by the
occupancy rates for the particular calendar year, or portion thereof, as the
case may be, to reflect a full occupancy.
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USE
7. PURPOSE. The Premises are to be used for executive and general office
purposes and for no other purposes without the prior written consent of
Landlord.
A. PROHIBITIONS. Tenant shall not use, or permit said Premises or any
part thereof to be used, for any purpose or purposes other than the purposes for
which the said Premises are hereby leased; and no use shall be made or permitted
to be made of the said Premises, nor acts done, which will increase the existing
rate of insurance upon the building in which said Premises may be located, or
cause a cancellation of any insurance policy covering said Building, or any part
thereof, nor shall Tenant sell, or permit to be kept, used, disposed of or sold,
in or about said Premises, any article or substance which may be prohibited by
Landlord's insurance policies. Tenant shall not keep, store, produce or dispose
of on, in or from the Premises or the Building Complex any substance which may
be deemed a hazardous substance or infectious waste under any Applicable Law, as
defined below. Tenant shall not commit, or suffer to be committed, any waste
upon the said Premises, or any public or private nuisance, or other act or thing
which may disturb the quiet enjoyment of any other tenant in the Building
Complex, nor, without limiting the generality of the foregoing, shall Tenant
allow said Premises to be used for any improper, unlawful or objectionable
purpose, nor shall Tenant use any apparatus, machinery or device in or about the
demised premises which shall make any noise or vibration or which shall in any
way increase the amount of electricity, gas or water to be furnished or supplied
under this Lease.
C. COMPLIANCE WITH LAW. Tenant, at its sole cost, shall comply with all
laws, orders, statutes, ordinances or governmental rules or regulations of
federal, state, county, municipal authorities, quasi-governmental, and utility
providers now in force or which may hereafter be enacted or promulgated (the
"Applicable Laws"), which impose a duty on Landlord or Tenant with respect to
the Premises, or te use or occupation thereof. Notwithstanding the foregoing and
subject to reimbursement as set forth in paragraph 6 above, Landlord will be
responsible for compliance of the Common Ares of the Building Complex with
Applicable Laws, including the Americans With Disabilities Act; provided,
however, Landlord shall have no obligation for compliance if such compliance is
a result of Tenant's use or occupancy of its Premises.
SERVICE AND UTILITIES
8. A. LANDLORD'S OBLIGATIONS. Subject to the provisions below, Landlord
agrees, without charge, in accordance with standards determined by Landlord from
time to time for the Building: (1) to furnish running water at those points of
supply for general use of tenants of the Building; (2) during Ordinary Business
Hours to furnish to interior Common Areas heated or cooled air (as applicable),
electrical current, janitorial services, and maintenance; (3) during Ordinary
Business Hours to furnish heated or cooled air to the Premises for standard
office use, provided the recommendations of Landlord's engineer regarding
occupancy and use of the Premises are complied with by Tenant; (4) to furnish,
subject to availability and capacity of Building systems, unfiltered treated
cooling tower water for use in Tenant's packaged HVAC systems provided that such
systems
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are approved by Landlord and equipped with Landlord-approved strainers, pumping
systems and controls; (5) to provide, during Ordinary Business Hours, the
general use of passenger elevators for ingress and egress to and from the
Premises (at least one such elevator shall be available at all times except in
the case of emergencies or repair); (6) to provide janitorial services for the
Premises to the extent of the Tenant improvements Landlord has completed in the
Premises (including window washing of the inside and outside of exterior
windows); and (7) to cause electric current to be supplied to the Premises for
Tenant's Standard Electrical Usage. Items (1) though (7) may be collectively
called "Services." "Tenant's Standard Electrical Usage" means weekly electrical
consumption in an amount determined by (i) multiplying 3.5 watts/square foot by
60 hours and (ii) multiplying the product thereof by the number of rentable
square feet in the Premises. "Ordinary Business Hours" means 7:00 a.m. to 6:00
p.m. Monday through Friday and 8:00 a.m. to 1:00 p.m. on Saturdays, Legal
Holidays excepted. "Legal Holidays" are New Year's Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day, and Christmas Day.
B. TENANT'S ADDITIONAL REQUIREMENTS. "Excess Usage" shall be defined as
any service usage (i) during other than Ordinary Business Hours; or (ii)
electricity in an amount in excess of Tenant's Standard Electrical Usage or
water in the Premises; (iii) for Special Equipment (as defined herein); or (iv)
for heat and air conditioning service, during other than Ordinary Business
Hours. "Special Equipment," as used herein, shall mean (a) any equipment
consuming more than 0.5 kilowatts at rated capacity; (b) any equipment requiring
a voltage other than 110 volts, single phase; or (c) equipment that requires use
of self-contained HVAC units. Tenant shall reimburse Landlord for reasonable
costs incurred by Landlord in providing services for Excess Usage. Such
reasonable costs will include Landlord's costs for materials, reasonable wear
and tear on equipment, utilities and labor (including fringe and overhead
costs). Computation of Landlord's costs for providing such services will be made
by Landlord's engineer, based on an engineering survey of Tenant's Excess Usage.
Tenant shall also reimburse Landlord for all costs of supplementing heating,
ventilating and air conditioning system and/or extending or supplementing any
electrical service, as Landlord may determine is necessary, as a result of
Tenant's Excess Usage. Prior to installation or use by Tenant of Special
Equipment or operation of the Premises for extended hours on an ongoing basis,
Tenant shall notify Landlord of such intended installation or use and obtain
Landlord's consent. Tenant may request that Landlord, at Tenant's sole costs and
expense, install a check meter and/or full meter to assist in determining the
cost to Landlord of Tenant's Excess Usage. If Tenant desires electric current
and/or heated or cooled air to the Premises during periods other than Ordinary
Business Hours, Landlord shall use reasonable efforts to supply the same, but at
the expense of Tenant, at Landlord's standard rate as established by it, from
time to time, for such services. If Tenant should require water in excess of
that usually furnished or supplied for use of the Premises as general office
space, Tenant shall first procure the consent of Landlord for the installation
and use thereof and shall bear all costs retained to such Excess Usage,
including but not limited to the cost of supplies and the cost of such meters
and installation, maintenance and repair thereof, and an accounting therefor, as
reasonably determined by Landlord.
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C. TENANT'S OBLIGATION. Tenant shall pay for, prior to delinquency, all
telephone and all other materials and services, not expressly required to be
provided by Landlord, which may be furnished to or used in, on or about the
Premises during the term of this Lease.
D. NON-LIABILITY. Landlord shall not be liable for, and Tenant shall
not be entitled to, any abatement or reduction of rent by reason of Landlord's
failure to furnish any of the foregoing services when such failure is caused by
accidents, breakage, repairs, strikes, lockouts or other labor disturbances or
labor disputes of any character, or any other cause similar or dissimilar,
beyond the reasonable control of Landlord. Landlord shall not be liable under
any circumstances for loss of or injury to property, however occurring, through
or in connection with incidental to failure to furnish any of the foregoing
services.
MAINTENANCE AND REPAIRS; ALTERATIONS AND ADDITIONS
9. A. MAINTENANCE AND REPAIRS.
(1) LANDLORD'S OBLIGATIONS. Landlord shall (i) make repairs to HVAC,
mechanical, life safety and electrical systems in the Premises (to the extent
such systems are Building standard) as are deemed necessary by Landlord for
normal maintenance operations of the Building Complex; and (ii) provide upkeep,
maintenance, and repairs to all Common Areas. Except as provided in this
subparagraph or otherwise expressly required in this Lease, Landlord is not
required to make improvements or repairs to the Premises during the Term.
(2) TENANT'S OBLIGATIONS.
(a) Tenant at Tenant's sole cost and expense, except for Services
furnished by Landlord pursuant to Paragraph 8 hereof, shall maintain the
Premises in good order, condition and repair, reasonable wear and tear excepted.
(b) Tenant agrees to repair any damage to the Premises or the
Building and to replace any items which in Landlord's opinion cannot be
satisfactorily repaired caused by any act or neglect of Tenant, its employees
and agents, the failure of Tenant to observe any provision of this Lease, or the
removal from the Building of any property belonging to Tenant. This includes,
without limitation, repairing or replacing the carpet, draperies and other wall
and floor coverings where unreasonable wear or damage has occurred. All such
repairs and replacements shall be done at Tenant's sole cost and subject to the
provisions of Paragraph 9.B.
(c) In the event Tenant fails to maintain the Premises in good
order, condition and repair as provided in this Lease, Landlord shall give
Tenant notice to such acts as are reasonably required to so maintain the
Premises. In the event Tenant fails to promptly commence such work and
diligently prosecute it to completion, then Landlord shall have the right to do
such acts and expend such funds at the expense of Tenant as are reasonably
required to perform such work. Any amount so expended by Landlord shall be paid
by Tenant promptly after demand
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with interest at twelve percent (12%) per annum from the date of such work.
Landlord shall have no liability to Tenant for any damage, inconvenience or
interference with the use of the Premises by Tenant as a result of performing
any such work.
(d) Upon expiration or earlier termination of this Lease, Tenant
shall surrender the Premises (including the carpet and draperies) in the same
condition as received, reasonable wear and tear and damage by fire, earthquake,
act of God or the elements alone excepted, and shall promptly remove or cause to
be remove at Tenant's expense from the Premises and the Building all property
belonging to Tenant. Tenant shall indemnify the Landlord against any loss or
liability resulting from delay by Tenant in surrendering the Premises,
including, without limitation, any loss of rent suffered by Landlord by reason
of such delay. In the event Tenant fails to remove its property, all such items
not so removed shall conclusively be deemed to have been abandoned and may be
appropriated, sold, stored, destroyed or otherwise disposed of by Landlord
without notice to Tenant or any other person and without obligation to account
thereof. Tenant shall pay Landlord all expenses incurred in connection with such
property. Tenant shall pay Landlord the cost of removal and/or repairing any
damage to the Building or the Premises caused by removal of such property.
Tenant's obligation hereunder shall survive the expiration or other termination
of this Lease.
B. ALTERATIONS AND ADDITIONS.
(1) Tenant shall make no repairs, alterations, additions or
improvements to the Premises or any part thereof without obtaining the prior
approval of Landlord.
(2) Landlord may impose as a condition to the aforesaid consent such
requirements as Landlord may deem necessary in its sole discretion, including
without limitation thereto, the manner in which the work is done, a right of
approval of the contractor by whom the work is to be performed, the times during
which it is to be accomplished, and the requirement that upon written request of
Landlord prior to the expiration or earlier termination of the Lease, Tenant
will remove any and all permanent improvements or additions to the Premises
installed at Tenant's expense and all movable partitions, counters, personal
property, equipment, fixtures and furniture. If any work done on behalf of
Tenant is performed by Landlord or the Building manager, Tenant shall pay to
Landlord, upon receipt of billing therefor, the costs for supervision and
control of such persons as Landlord may determine to be necessary and
reasonable.
(3) All such repairs, alterations, additions or improvements hall at
the expiration or earlier termination of the Lease become the property of
Landlord and remain upon and surrendered with the with the Premises, unless
specified pursuant to Paragraph (2) above.
ENTRY BY LANDLORD
10. Landlord and its agents shall have the right to enter the Premises
at all reasonable times for the purpose of examining or inspecting the same, to
supply janitorial services
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and any other service to be provided by Landlord or Tenant hereunder, to show
the same to prospective purchasers or tenants of the Building, and make such
alterations, repairs, improvements or additions to the Premises or the Building
as Landlord may deem necessary or desirable. Any such reentry shall not
constitute an eviction or entitle Tenant to abatement of Rent. Furthermore,
Landlord shall at all times have the right at Landlord's election to make such
alterations or changes in portions of the Building Complex as Landlord may from
time to time deem necessary and desirable as long as such alterations and
changes do not unreasonably interfere with Tenant's use and occupancy of the
Premises. Landlord, during the term of this Lease, shall have the right, upon
ninety (90) days' prior written notice to Tenant, to change the name, number or
designation of the Building in which the Premises are located without liability
to Tenant. Tenant shall not without the prior consent of Landlord change the
locks or install additional locks on any entry door or doors to or within the
Premises.
LIENS
11. Tenant shall keep the Premises and the Building fee from any liens
arising out of work performed, materials furnished, or obligations incurred by
Tenant and does hereby agree to indemnify, hold harmless and defend Landlord
from any liens, costs, attorney's fees and encumbrances arising out of any work
performed or materials furnished by or at the direction of Tenant. If any lien
is recorded against the Premises, Landlord may pay such amount and any costs ad
the amount paid, together with reasonable attorney's fees incurred, shall be
immediately due Landlord upon notice. Tenant shall give to Landlord at least ten
(10) days' prior written notice of the expected date of commencement of any work
relating to alterations or additions to the Premises.
DAMAGE TO PROPERTY
12. A. Tenant agrees Landlord is not liable for any injury or damage,
either proximate or remote, occurring through or caused by fire, water, steam,
or any repairs, alterations, injury, accident, or any other cause to the
Premises, to any furniture, fixtures, Tenant improvements, or other personal
property of Tenant kept or stored in the Premises, or in other parts of the
Building Complex, whether by reason of the negligence or default of Landlord,
other occupants, any other person, or otherwise; and the keeping or storing of
all property of Tenant in the Premises and Building Complex is at the sole risk
of Tenant. Tenant shall maintain throughout the Term "all risk" or "multi-peril"
insurance for the full replacement cost of Tenant's property and betterments in
the Premises, including tenant finish in excess of the Initial Tenant Finish.
B. Tenant agrees to indemnify, defend, and hold Landlord, its
agents, and employees harmless from all liability, costs, or expenses, including
attorney's fees, on account of damage to the person or property of any third
party, including any other tenant in the Building Complex, to the extent caused
by the negligence, misconduct or breach of this Lease by the Tenant or Tenant's
agent or employees.
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DAMAGE OR DESTRUCTION TO BUILDING
13. A. In the event the Premises or the Building of which the same are
a part are damaged by fire or other insured casualty and the insurance proceeds
have been made available to Landlord by the holder or holders of any mortgages
or deeds of trust covering the Premises, or the property of which the same are a
part, the damage shall be repaired by and at the expense of Landlord to the
extent of the Building standard tenant finish work and of such insurance
proceeds available therefor, provided such repairs can, in Landlord's sole
opinion, be made within one hundred twenty (120) days after the occurrence of
such damage without the payment of overtime or other premiums. Until such
repairs are completed, the rent shall be abated in proportion to the part of the
Premises which is unusable by Tenant in the conduct of its business (but there
shall be no abatement of rent by reason of any portion of the Premises being
unusable for a period equal to three (3) days or less). If the dame is due to
the fault or neglect of Tenant or its employees, agents or invitees, there shall
be no abatement of rent. If repairs cannot, in Landlord's sole opinion, be made
within one hundred twenty (120) days, or if Landlord does not so elect to make
such repairs, then either party may, by written notice to the other, given
within sixty (60) days after the happening of such damage cancel this Lease as
of the date of the occurrence of such damage. A total destruction of the
Building in which Premises are located shall automatically terminate this Lease.
B. Except as provided in this Paragraph, there shall be no
abatement of rent an no liability of Landlord by reason of any injury to or
interference with Tenant's business or property arising from the making of any
repairs, alterations or improvements in or to any portion of the Building or the
Premises or in or to fixtures, appurtenances and equipment therein. Tenant
understands that Landlord will not carry insurance of any kind on Tenant's
leasehold improvements or on Tenant's personal property under the provisions of
this Lease, an that Landlord shall not be obligated to repair any damage thereto
or replace the same.
C. In the event that the Building in which the demised Premises may
be situated be destroyed to the extent of not less than thirty percent (30%) of
the replacement cost thereof, or in the event the Applicable Laws or economic
considerations make it impracticable to repair the damage within 60 days after
the happening of such damage, Landlord may elect to terminate this Lease,
whether the demised Premises be injured or not by written notice to Tenant to
that effect. In the event of any dispute between Landlord and Tenant relative to
the provisions of this Paragraph, they shall select an arbitrator, the two
arbitrators so selected shall select a third arbitrator, and the three
arbitrators so selected shall hear and determine the controversy and their
decision thereon shall be final and binding upon both Landlord an Tenant, who
shall bear the cost of such arbitration equally between them.
INSURANCE
14. A. TENANT. Tenant shall procure and maintain at its cost primary
insurance coverage for all of Tenant's leasehold improvements and personal
property in or about the Premises or Building, for the full replacement cost
thereof, providing broad form fire and extended coverage,
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sprinkler leakage, vandalism and malicious mischief. Any proceeds shall be used
for the repair or replacement of leasehold improvements damaged or destroyed
during the term of this Lease.
B. LIABILITY. Tenant shall obtain and maintain throughout the term
of this Lease a commercial general liability insurance policy, including
protection against bodily injury, personal injury and property damage (employee
and contractual liability exclusions deleted), issued by an insurance company
qualified to do business in the State of Colorado, with a combined single limit
of not less than $1,000,000 for bodily injury and property damage. Such policy
shall provide that the same may not be canceled or modified without at least
twenty (20) days' prior written notice to Landlord. Tenant shall deliver from
time to time certificates evidencing that such insurance is in force and effect.
The limits of said insurance shall not, under any circumstances, limit the
liability of Tenant hereunder.
C. LANDLORD'S INSURANCE. Landlord shall maintain casualty insurance
for the Building Complex and the shell and core of the Building to the extent of
the tenant finish work performed by Landlord in the Premises, in such amounts,
from such companies and on such terms and conditions, including loss of rental
insurance, as Landlord deems appropriate, from time to time. Tenant understands
that Landlord will not carry insurance of any kind on Tenant's furniture and
furnishings or on any fixture or equipment removable by Tenant under the
provisions of this Lease, or any other leasehold improvements or personal
property of Tenant.
D. WAIVER. Notwithstanding anything to the contrary contained
herein Landlord and Tenant hereby mutually waive and release their respective
rights of recovery against each other, their officers, agents and employees (but
not against other third parties) for (1) any loss on its property capable of
being insured against by "all risk" or "multi-risk" insurance coverage whether
carried or not; and (ii) all loss, cost, damage or expense arising out of or due
to any interruption of business (regardless of the cause therefor), increased or
additional costs of operation of business or their costs or expenses whether
similar or dissimilar which are capable of being insured against under business
interruption insurance whether or not carried. Each party shall apply to its
insurers to obtain said waivers and obtain any special endorsements, if required
by its insurer to evidence compliance with the aforementioned waiver, and shall
bear the cost therefor.
ASSIGNMENT AND SUBORDINATION
15. A ASSIGNMENT AND SUBLETTING. Tenant shall not assign nor encumber
this Lease, or any interest therein, and shall not sublet the said Premises or
any part thereof, or any right to privilege appurtenant thereto, or suffer any
other person (the agents and employees of Tenant excepted) to occupy or use the
said Premises, or any portion thereof, without the written consent of Landlord,
which consent may be withheld in Landlord's sole and absolute discretion. A
consent to one assignment, subletting, occupation or use by any other person
shall not be deemed to be a consent to any subsequent assignment, subletting,
occupation or use by another person. Any assignment or subletting without
Landlord's prior written consent shall be void, and shall at the option of
Landlord terminate this Lease. This Lease shall not, nor shall any interest
therein, be
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assignable, as to the interest of Tenant, by operation of law, without the
written consent of Landlord. Notwithstanding the consent of Landlord to any
sublease or Assignment, Tenant shall not be relieved of its primary obligations
hereunder to Landlord. Landlord may, after default by Tenant, collect rent from
any subtenant or assignee of occupant and apply the net amount collected to the
Rent herein reserved, but no such collection will be deemed an acceptance of the
subtenant or assignee or occupant as Tenant or release Tenant from its
obligations. If Tenant collects any rent or other amounts from a subtenant in
excess of the Rent for any monthly period, Tenant shall pay Landlord the excess
monthly as and when received. All documents utilized by Tenant to evidence a
subletting or assignment are subject to the approval of Landlord. Tenant shall
pay Landlord's expenses, including reasonable attorneys' fees, for determining
whether to consent and in reviewing and approving the documents. Tenant shall
provide Landlord with such information as Landlord reasonably requests regarding
a proposed subtenant, including financial information.
B. SUBORDINATION TO MORTGAGE AND/OR DEED OF TRUST. This Lease is
subject and subordinate to any present or future first mortgage and/or first
deed of trust which now or hereafter may affect the real property of which the
Premises forms a part, and to all renewals, modifications, consolidations,
replacements and extensions thereof. Tenant agrees that no documentation other
than this Lease is required to evidence such subordination. Notwithstanding the
foregoing, in confirmation of subordination, Tenant will execute such documents
as may be required by a mortgagee and if it fails to do so within 10 days after
demand, Tenant hereby appoints Landlord as Tenant's attorney-in-fact and in
Tenant's name, place, and stead to do so.
C. ESTOPPEL CERTIFICATE. Tenant shall at any time and from time to
time upon not less than ten (10) days' prior written notice from Landlord
execute, acknowledge and deliver to Landlord a statement in writing certifying
that this Lease is unmodified and in full force and effect (or, if modified,
stating the nature of such modification and certifying that this Lease, as so
modified, is in full force and effect) and the dates to which rental and other
charges are paid in advance, if any, and acknowledging that there are not, to
Tenant's knowledge, any uncured defaults on the part of Landlord hereunder or
specifying such defaults if any are claimed. It is expressly understood and
agreed that any such statement may be relied upon by any prospective purchaser
or encumbrancer of all or any portion of the real property of which the Premises
are a part. Tenant's failure to deliver such statement within such time shall be
conclusive upon Tenant that this Lease is in full force and effect, without
modification except as may be represented by Landlord, that there are no uncured
defaults in Landlord's performance and that not more than two (2) months' rental
has been paid in advance.
D. ATTORNMENT. Tenant hereby attorns to all successor owners of the
Building, whether such ownership is acquired by sale, foreclosure of a mortgage,
or otherwise.
E. QUIET ENJOYMENT. So long as Tenant complies with the terms and
provisions of this Lease, Landlord agrees to warrant and defend in the quiet
enjoyment and possession of the Premises during the term of this Lease, subject
to the terms of the Lease and of any of the ground leases, mortgages or deeds of
trust which now or hereafter may affect the Building.
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DEFAULT AND REMEDIES
16 A. DEFAULT. The occurrence of any of the following shall constitute
an Event of Default and breach of this Lease by Tenant:
(1) Any failure by Tenant to pay the rent or any other monetary
sums required to be paid within ten (10) days after same are due hereunder;
(2) The abandonment or vacation of the Premises by Tenant;
(3) A failure by Tenant to observe and perform any other provision
of this Lease to be observed or performed by Tenant, where such failure
continues for ten (10) days after written notice thereof by Landlord to Tenant;
provided, however, that if the nature of the default is such that the same
cannot reasonably be cured within said ten-day period, Tenant shall not be
deemed to be in default if Tenant shall within such period commence such cure
and thereafter diligently prosecute the same to completion;
(4) The making by Tenant of any general assignment or general
arrangement for the benefit of creditors; the filing by or against Tenant of a
petition to have Tenant adjudged a bankrupt or of a petition for reorganization
or arrangement under any law relating to bankruptcy (unless, in the case of
petition filed against Tenant, the same is dismissed within sixty (60) days; the
appointment of a trustee or receiver to take possession of substantially all of
Tenant's assets located at the Premises or of Tenant's interest in this Lease,
where possession is not restored to Tenant within thirty (30) days; or the
attachment, execution or other judicial seizure of substantially all of Tenant's
assets located at the Premises or of Tenant's interest in this lease, where such
seizure is not discharged within thirty (30) days.
B. REMEDIES OF LANDLORD. If an Event of Default occurs, Landlord may
then or at any time thereafter, either:
(1) (a) Without demand or notice, or reenter and take possession of
the Premises or any part thereof and expel Tenant and those claiming through or
under Tenant and remove the effects of both without being deemed guilty of any
manner of trespass and without prejudice to any remedies for arrears of Rent or
breach of this Lease. Should Landlord elect to reenter, as provided in this
subparagraphs (1), or should Landlord take possession pursuant to legal
proceedings or any notice provided for by law, Landlord may, from time to time,
without terminating this Lease, relet the Premises or any part, either alone or
in conjunction with other portions of the Building Complex, in Landlord's or
Tenant's name but for the account of Tenant, for such periods (which may be
greater or less than the period which would otherwise have constituted the
balance of the Term) and on such conditions and upon such other terms (which may
include concessions of free rent and alteration and repair of the Premises) as
Landlord, in its sole discretion, determines and Landlord may collect the rents
therefor. Landlord is not in any way responsible or liable for failure to relet
the Premises, or any part thereof, or for any failure to collect any rent due
upon such reletting.
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No such reentry or possession or notice from Landlord shall be construed as an
election by Landlord to terminate this Lease unless specific notice of such
intention is given Tenant. Landlord reserves the right following any reentry
and/or reletting to exercise its right to terminate this Lease by giving Tenant
notice, in which event this Lease will terminate as specified in the notice.
(b) If Landlord takes possession of the Premises as provided
above without terminating this Lease, Tenant shall pay Landlord (i) the Rent
which would be payable hereunder if repossession had not occurred, less (ii) the
net proceeds, if any, of any reletting of the Premises after deducting all of
Landlord's expenses incurred in connection with such reletting, including all
repossession costs, brokerage commissions, attorneys fees, expenses of
employees, alteration, and repair costs (collectively "Reletting Expenses"). If,
in connection with any reletting, the new lease term extends beyond the Term or
the premises covered thereby include other premises not part of the Premises, a
fair apportionment of the rent received from such reletting and the Reletting
Expenses, will be made in determining the net proceeds received from the
reletting. In determining such net proceeds, rent concessions will also be
apportioned over the term of the new lease. Tenant shall pay such amounts to
Landlord monthly on the days on which the Rent would have been payable if
possession had not been retaken, and Landlord is entitled to receive the same
from Tenant on each such day; or
(2) Give Tenant notice of termination of this Lease ion the date
specified and, on such date, Tenant's right to possession of the Premises shall
cease and the Lease will be terminated except as to Tenant's liability as
hereafter provided as if the expiration of the term fixed in such notice were
the end of the Term. If this Lease terminates pursuant to this paragraph, Tenant
remains liable to Landlord for damages in an amount equal to the Rent which
would have been owing by Tenant for the balance of the Term had this Lease not
terminated, less the net proceeds, if any, of reletting of the Premises by
Landlord subsequent to termination after deducting Reletting Expenses. Landlord
may collect such damages from Tenant monthly on the days on which the Rent
amounts would have been payable hereunder if this Lease had not terminated and
Landlord shall be entitled to receive the same from Tenant on each such day.
Alternatively, if this Lease is terminated, Landlord at its option may recover
forthwith against Tenant as damages for loss of the bargain and not as a penalty
an amount equal to the worth at the time of termination of the excess, if any,
of the Rent reserved in this Lease for the balance of the Term over the then
Reasonable Rental Value of the Premises for the same period plus all Reletting
Expenses. "Reasonable Rental Value" is the amount of rent Landlord can obtain
for the remaining balance of the Term.
C. CUMULATIVE REMEDIES. Suits to recover Rent and damages may be
brought by Landlord, from time to time, and nothing herein requires Landlord to
await the date the Term would expire had there been no Event of Default or
termination, as the case may be. Each right and remedy provided for in this
Lease is cumulative and non-exclusive and in addition to every other right or
remedy provided now or hereafter existing at law or equity, including suits for
injunctive relief and specific performance. The exercise or beginning of the
exercise by Landlord of one or more rights or remedies shall not preclude the
simultaneous or later exercise by Landlord of other rights or remedies. All
costs incurred by Landlord to collect any Rent and damages or to enforce this
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Lease are also recoverable from Tenant. If any suit is brought, the prevailing
party is also entitled to recover from the other party all reasonable attorneys
fees and costs incurred in connection therewith.
D. NO WAIVER. No failure by Landlord to insist upon strict performance
of any provision or to exercise any right or remedy upon a breach thereof, and
no acceptance of full or partial Rent during the continuance of any breach
constitutes a waiver of any such breach or such provision, except by written
instrument executed by Landlord. No waiver shall affect or alter this Lease but
each provision hereof continues in effect with respect to any other then
existing or subsequent breach thereof.
E. BANKRUPTCY. Nothing contained in this Lease limits Landlord's right
to obtain as liquidated damages in any bankruptcy or similar proceeding the
maximum amount t allowed by law at the time such damages are to be proven,
whether such amount is greater, equal to, or less than the amounts recoverable,
either as damages or Rent, referred to in any of the preceding provisions of
this paragraph.
F. LATE PAYMENT CHARGE. Any Rent or other monetary sums not paid
within 10 days after the due date shall thereafter bear interest at one and
one-half (1-1/2%) of such amount per month until paid. Any amounts paid by
Landlord to cure a default of Tenant which Landlord has the right but not the
obligation to do, shall, if not repaid by Tenant within 10 days of demand by
Landlord, thereafter bear interest at one and one-half percent (1-1/2%) of such
amount per month until paid.
G. WAIVER OF JURY TRIAL. Tenant and Landlord waive any right to a
trial by jury in suits arising out of or concerning the provisions of this
Lease.
EMINENT DOMAIN
17. In the event the Premises, or any part thereof, shall be taken by any
exercise of the right of eminent domain or by action of any public or other
authority during this Lease or any extension thereof, then this Lease shall
terminate at the election of the Landlord, and if the Landlord shall not so
elect to terminate this Lease, then the rental shall be proportionately
adjusted. The Landlord reserves all rights to damages to said Premises and the
leasehold hereby created, hereafter accruing by reason of any exercise of the
right of eminent domain, or by reason of anything lawfully done and in pursuance
of any public or other authority; and by way of confirmation, the Tenant grants
to the Landlord all of the Tenant's rights to such damages and covenants to
execute and deliver such further instruments of assignment thereof as Landlord
may from time to time request. Nothing in this paragraph shall give Landlord any
interest in, or preclude Tenant from seeking, on its own account, any award
attributable to the taking of personal property or trade fixtures belonging to
Tenant, or for the interruption of Tenant's business.
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18. SURRENDER AND HOLDING OVER. Upon the expiration or other termination of
this Lease, Tenant shall promptly quit and surrender to Landlord the Premises in
accordance with subparagraph A(2)(d) of Paragraph 9. If, after the expiration of
this Lease, Tenant shall remain in possession of the Premises and continue to
pay rent, and Landlord shall accept such rent or permit such possession, without
any express written agreement as to such holding over, then such holding over
shall be deemed and taken to be holding upon a tenancy from month to month,
subject to all the terms and conditions hereof on the part of Tenant, to be
observed and performed at a monthly Base Rent rate equivalent to one hundred
twenty-five percent (125%) of the monthly installments paid by Tenant
immediately prior to such expiration. Such month-to-month tenancy may be
terminated by either party upon not less than ten (10) days notice prior to the
end of any such monthly period. Nothing contained herein shall be construed as
obligating Landlord to accept any rental tendered by Tenant after expiration of
the term hereof or as relieving Tenant of its liability pursuant to subparagraph
A(2)(d) of Paragraph 9. If Tenant holds over without the consent of Landlord,
Tenant shall be in default under the Lease and liable for any loss or liability
resulting from such delay by Tenant in surrendering the Premises, including but
not limited to, rent for such period at the holding over rate referred to above
and consequential damages.
SECURITY INTEREST
19. Subject to any prior purchase money security interests granted by
Tenant, Tenant hereby conveys to Landlord all of Tenant's property situated on
the Premises as security for the payment of all Rent and other amounts due or to
become due hereunder, and Tenant shall execute such documents as Landlord may
reasonably require to evidence and perfect Landlord's security interest therein.
For this purpose, this Lease shall be considered to be a security agreement
covering such personal property and Landlord, upon the occurrence of an Event of
Default under this Paragraph 19 hereof, may exercise any rights of a secured
party under the Uniform Commercial Code of the State of Colorado. Such security
interest shall be prior and superior to any other security interest except an
existing purchase money security interest. Tenant's property shall not be
removed from the Premises without the consent of Landlord, except to the extent
such property is replaced with an item of equal or greater value (and Landlord's
security interest shall extend to such replacements and to the proceeds of all
such property).
RULES AND REGULATIONS
20. Tenant shall observe and comply with the Rules and Regulations attached
hereto as Exhibit C, which are made part hereof, and with such further
reasonable rules and regulations as Landlord may prescribe, on written notice to
Tenant, for the safety, care and cleanliness of the Building and the comfort,
quiet and convenience of other occupants of the Building. Landlord shall not be
responsible to Tenant for the non-performance by any other tenant or occupant of
the Building of any of said Rules and Regulations.
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AMENITIES
21. Landlord has made available space in the Building for a health club and
dressing rooms and a conference room (together the "Amenities") which, subject
to the following, are available for use by Tenant and its employees, other
tenants of the Building and their employees subject to availability. The health
club facility and conference room are considered as part of the Common Area of
the Building and all costs associated therewith are Operating Expenses of the
Building.
A. The right granted to Tenant and its employees to use the Amenities
shall be deemed a license only and Landlord's inability to make such facility
available at any time during the term of the Lease shall not be deemed a breach
by Landlord of any of its obligations under the Lease. Landlord reserves the
right to close the Amenities, or a portion thereof, remove equipment without
replacement or otherwise modify the Amenities area. Landlord will post the
Amenity premises or notify Tenant if Landlord intends to close on or all or
institute new rules for the use thereof.
B. Tenant and its employees shall abide by all rules and regulations as
are or may at any time be established by Landlord for use of the Amenities,
including, but not limited to the following: (i) requiring payment to Landlord
for any and all loss or damage caused by Tenant or Tenant's agents, employees or
others than Tenant grants access to the Amenities occurring or related to the
use of the Amenities; (ii) observing the special hours of operating, closing and
nonuse of the Amenities; (iii) observing all posted rules and regulations; and
(iv) reserving the conference room through the Building Complex management
office.
C. The following are applicable to the health club facility:
(1) Tenant and its employees understand that using the health club
facilities and equipment or fixtures contained therein may be hazardous, and
that injuries may result from use of the health club facilities, including the
change of injury resulting from the negligence and carelessness of other users
of the health facility or Landlord. Tenant acknowledges that health club
facilities are not supervised and all risk of loss or injury is that of Tenant
or its employees. Neither Landlord or its partners, agents or employees shall be
liable for any injury, damages, fire, theft, or loss to persons or property
while in the health club facilities, whether caused by theft, fire, defective
equipment, negligence of Landlord, its partners, agents or employees, or
negligence of others in the health club facilities of any other activity or
occurrence in such health club facilities. Tenant, its employees or the invitees
of either exempts and releases Landlord, its agents, its partners, servants, and
employees from any and all liability, claims, demands or actions or causes of
action whatsoever arising out of damage, loss or injury to the waiving party
while in the health club facilities or while participating in any activities
contemplated to be performed in the health club facilities, whether such loss,
damage or injury, results from the negligence of Landlord, its partners, agents,
servants or employees or from some other cause. Tenant, its employees, or either
of their invitees into the health facility assume the risk of injury, loss or
damage and shall indemnify, defend and hold Landlord, its agents, its partners
and employees harmless from and against any claims of loss and damages incurred
by Landlord arising out of Tenants, its employees' or invitees' use of the
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health club facilities, including all costs, attorneys' fee and expenses and
liabilities incurred on or about any such claim or action.
(2) At Landlord's request, Tenant shall obtain a written agreement
from all users of the health club facilities to the obligations under this
Paragraph 21 using Landlord's standard form therefor prior t6o issuing a key to
the health club facilities to such user or at any other time designated by
Landlord. If Tenant shall fail to obtain such an agreement and deliver it to
Landlord or its agents, Tenant shall assume all obligations set forth in this
Paragraph for such user.
D. Tenant and its employees shall be prohibited from allowing any other
person to enter or use the Amenities without express consent of Landlord and
execution of a written agreement from any such user described in subparagraph C
above.
NOTICE
22. Any notice from the Landlord to the Tenant shall be deemed duly served
if mailed by registered or certified mail, addressed to the Tenant at said
Premises, whether or not Tenant has departed from, vacated or abandoned the
Premises, or to the Landlord at the place from time to time established for the
payment of rent, and the customary registered or certified mail receipt shall be
conclusive evidence of such service. Either party may designate in writing
served as above provided a different address to which notice is to be mailed.
SALE BY LANDLORD
23. In the event of a sale or conveyance by Landlord of the Building
containing the Premises, the same shall operate to release Landlord from any
future liability upon any of the covenants or conditions, expressed or implied,
herein contained in favor of Tenant, and in such event Tenant agrees to look
solely to the responsibility of the successor in interest of Landlord in and to
this Lease. This Lease shall not be affected by any such sale, and the Tenant
agrees to attorn to the purchaser or assignee.
BROKERAGE
24. Tenant represents that it has not employed any broker with respect to
this Lease and has no knowledge of any broker's involvement in this transaction
except Oliver Real Estate ( collectively the "Brokers"). Tenant shall indemnify
Landlord against any expense incurred by Landlord as a result of any claim for
commissions or fees by any other broker, finder or agent, whether or not
meritorious, employed by Tenant or claiming by, through, or under Tenant other
than the Brokers. Tenant acknowledges Landlord is not liable for any
representation by the Brokers regarding the Premises, the Building, Building
Complex or this Lease. Tenant acknowledges that several of Landlord's partners
and/or employees may be licensed real estate agents and may be providing
brokerage services in connection with this Lease.
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RELOCATION
25. If the Premises are less than 3,000 rentable square feet, Tenant agrees
that Landlord may relocate Tenant to other space in the Building upon 30 days'
prior written notice to Tenant containing at least the same amount of rentable
space as is contained in the Premises, provided that the rent is not increased
above the amount payable hereunder and the reasonable costs of relocating
Tenant, including the cost of substantially comparable tenant finish in the new
space, are borne by Landlord. The suite number designation and Exhibit A shall
be deemed revised to reflect the description of the substitute premises. Except
for such revisions the provisions of this Lease are applicable to the substitute
premises which are the Premises following Tenant's move.
MISCELLANEOUS PROVISIONS
26. A. The words "Landlord" and "Tenant" as used herein shall include the
plural as well as the singular. Words used in masculine gender include the
feminine and neuter. If there be more than one Tenant, the obligations hereunder
imposed upon Tenant shall be joint and several. The titles to the paragraphs of
this Lease are not a part of this Lease and shall have no effect upon the
construction or interpretation of any part hereof.
B. Time is of the essence of this Lease and each and every provision
hereof except as to the conditions relating to the delivery of possession of the
Premises of Tenant.
C. Submission of this instrument for examination or signature by Tenant
does not constitute a reservation of or option for lease, and it is not
effective as a lease or otherwise until execution and delivery by both Landlord
and Tenant.
D. Notwithstanding expiration or termination of this Lease, this Lease
shall be deemed to continue in effect as to any provisions requiring observance
or performance subsequent to termination or expiration.
E. Clauses, plats and riders, if any, signed or initialed by Landlord
and Tenant or an authorized representative of Tenant and endorsed on or affixed
to this Lease are a part hereof, and in the event of variation or discrepancy,
the duplicate original hereof, including such clauses, plats and riders, if any,
held by Landlord shall control.
F. Any provision of this Lease which shall prove to be invalid, void,
or illegal shall in no way affect, impair or invalidate any other provision
hereof and such other provisions shall remain in full force and effect.
G. This Lease shall be governed by and construed pursuant to the laws
of the State of Colorado.
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H. Tenant acknowledges and agrees that it has not relied upon any
statement, representations, agreements or warranties except such as are
expressed herein.
I. If Tenant is a corporation, each individual executing this Lease on
behalf of said corporation represents and warrants that he is duly authorized to
execute and deliver this Lease on behalf of said corporation in accordance with
a duly adopted resolution of the Board of Directors of said corporation and that
this Lease is binding upon said corporation in accordance with its terms. If,
there is more than one party which is Tenant, the obligations imposed on Tenant
are joint and several.
J. Tenant agrees to look solely to Landlord's interest in the Building
for satisfaction of any liability of or judgment against Landlord hereunder and
that none of the partners of Landlord shall have any personal liability
therefor.
K. The covenants and conditions herein contained shall, subject to the
provisions of Paragraph 15, apply to and bind the heirs, successors, executors,
administrators, assigns and subtenants of the parties hereto.
L. Landlord may use any of the Common Areas for purposes of completing
or making repairs or alterations in any portion of the Building Complex.
M. Landlord may as it relates to the Building and Building Complex
change the name, increase the size by adding additional property, construct
other buildings or improvements, change the location and/or character or make
alterations or additions. If additional buildings are constructed or the size is
increased, Landlord and Tenant shall execute an amendment which incorporates any
necessary modifications to Tenant's Proportionate Share. Tenant may not use the
Building's name for any purpose other than as part of its business address.
N. As part of the Services Landlord provides hereunder, Landlord may
elect to provide a concierge or security guard for more efficient operation of
the Building Complex, and the cost therefor shall be included as an Operating
Cost. Landlord is not obligated to provide such Services at any time or for any
length of time. Tenant expressly acknowledges that Landlord has not represented
to Tenant that the Building Complex are secure buildings or areas.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease the
day and year first above written.
LANDLORD
PLAZA II, LTD.
By: BPM Inc., a Colorado corporation
Managing General Partner
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By /s/ BPM, Inc.
-----------------------------------
Title:
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TENANT
HIGH SPEED ACCESS CORP.
By: /s/ Richard J. Pulley
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Richard J. Pulley
Vice President of Operations
EXHIBIT LIST
(Check if applicable)
X Exhibit A - The Premises
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X Exhibit B - Legal Description
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X Exhibit C - Rules and Regulations
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X Exhibit D - Space Plan
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X Addendum
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